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Family Assessment Response (FAR) Reports Are Not Subject to Expunction (Expungement) Prior to the Expiration of the 10-Year Statutory Period

The Second Department determined the Office of Children and Family Services (OCFS) did not have the authority to expunge a Family Assessment Response (FAR) report prior to the end of the 10-year statutory period.  The decision includes an in-depth analysis of the early expunction (expungement) of reports pursuant to Social Services Law 422(5)(c) and why such early expunction (expungement) is not authorized for Family Assessment Response (FAR) reports pursuant to Social Services Law 427-a:

… Social Services Law § 427-a is not “silent” on the matter of expunction of FAR reports and records. Rather, it expressly requires that FAR reports and records be maintained for 10 years after the initial report is made (see Social Services Law § 427-a[4][c][i]; [5][c]). Thus, as OCFS correctly determined, pursuant to Social Services Law § 427-a, FAR reports and records are only subject to expunction 10 years after the initial report is made to the SCR, and not before.

…[T]he existence of an early expunction provision in Social Services Law § 422 supports … this interpretation. In this respect, the failure of the Legislature to include an early expunction provision in Social Services Law § 427-a, when it had, prior to the enactment of Social Services Law § 427-a, included such a provision in a statute within the same statutory scheme, “should be construed as indicating that the exclusion was intentional” … .

…[T]he interpretation of Social Services Law § 427-a as not incorporating the early expunction process set forth in Social Services Law § 422(5)(c) does not conflict with the legislative intent of section 427-a. As explained in the relevant legislative history, “[t]raditionally, CPS is required to respond to reports of child abuse and maltreatment with a standard investigation that is narrowly focused on determining whether a specific incident of abuse actually occurred and if the child is at risk” … . “The focus of the CPS system on investigation of abuse and maltreatment has created an environment that, for many families, casts suspicion over any offer of services or service referrals” (id.). Implementation of a differential response, in the form of a FAR track, “permits a social service district to conduct an assessment of the family’s needs and strengths rather than investigate the validity of the allegations in a child abuse and maltreatment report” … . “The expectation of FAR is that families will be more likely to seek necessary help when a less adversarial, less threatening, approach is taken” … . Matter of Corrigan v New York State Off. of Children & Family Servs., 2015 NY Slip Op 05473, 2nd Dept 6-24-15

 

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